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A query is made regarding the tax treatment of a merger by absorption between two entities with cross-shareholdings. The DGT indicates that, provided commercial and tax requirements are met, the special merger regime may be applied and the transaction is exempt from ITPAJD.
Question posed: The natural person consulting holds 99% of the shares in entity A and 51% of the shares in entity B. Furthermore, entity A holds 49% of the shares in entity B and entity B holds 1% of the shares in entity A.
If the merger is carried out under Law 3/2009 and complies with Article 76.1 of the LIS, the special merger regime may apply. In this case, entity A shall not include income from the cancellation of its shareholding in entity B, but entity B shall include income from the cancellation of its shareholding in entity A as it is less than 5%. Resident shareholders in Spain shall not include income from the attribution of values and shall maintain their tax value. The transaction is not subject to the corporate operations modality and is exempt from onerous transfers and documented legal acts under the ITPAJD.
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